Some time ago, I banned my law clerks and the pro se staff lawyers, who I also supervise, from using the word “problematic” when writing opinions. Gabi (who is now our chief pro se staff attorney, a wonderful writer and a very funny young woman) gave me an essay on the subject that gently chided me for the fox paw.  That essay is reprinted below.

By the way, the persons referred to in the essay as Laura and Ryan are law clerks or members of the pro se staff. The person referred to as “Kris” is my judicial assistant. The “Marnie Jensen” named in the fourth footnote (****) was then the chief pro se staff attorney who has now gone on to become a partner in AM 100 firm.  Before she came to work for the court, Marnie was one of the lawyers in the case to which the footnote related.

Even though I personally found it both plainly perturbing and petulantly perverse, here is Gabi’s paen to “problematic”:

Problematic: an Essay

Problematic. Few words have such rich and multivalent uses. Surprisingly, there are still individuals in society who object to its use and take for granted the magnificent beauty it brings to language and, in turn, humanity.

A. Sometimes, “Problematic” is an Adjective

When used as a predicate adjective, “problematic” is the perfect subject complement. Take the following example: Laura’s propensity to walk through the office shoeless is problematic given the physiological qualities of the human foot (i.e., over 200 sweat glands*). Of course, Gabi has also been known to roam shoeless, however, this is far less problematical because her feet are always perfectly manicured.**

“Problematic” is also a very useful adjective when a writer must convey the severity of a situation and simply stating “there is a problem” does not pack enough force. For example, imagine an active shooter entered chambers while Kris was away and it was up to Ryan to alert the judge. Given Ryan’s dispassionate and serene nature, he would slowly pick up the phone, patiently wait for the judge to answer, and then state the following: “Well [long pause], there is an active shooter in the building [even longer pause]. Guess we better take cover.” Is Ryan’s response to the situation simply a “problem” or is it “problematic”? I think we all know the answer.

 B. Sometimes, “Problematic” is a Noun

Please do not assume that “problematic” only functions as an adjective, as it is also a very useful noun. Watch me use “problematic” as a noun in the following sentence: Always the skeptical problematic, Judge Kopf has decided to begin his next opinion with, “if the people want to go to Hell, I will help them. It’s my job.”

Indeed, “problematic” is a brilliant noun. The word’s true beauty is that it can be artfully molded into other nouns that are just as grand, such as “prolegomena” and “problemology,” or if you prefer something a little plainer, “problem.”

 C. Judges Love Problematics!

The Justices of the United States Supreme Court have written “problematic” into at least 193 published opinions. In one year alone, the word was referenced numerous times.*** Indeed, the Court has affirmatively determined that all of the following things are problematic: “‘in for a dime, in for a dollar’ hypothetical[s],” Waddington, 129 S.Ct. at 830; “anti-drunk-driving policies,” Virginia v. Harris, 130 S.Ct. at 11; “deep intrusion[s],” F.C.C. v. Fox, 129 S.Ct. at 1820; “chances for success,” Ricci, 129 S.Ct. at 2701; “beliefs,” Uttecht v. Brown, 551 U.S. 1, 18 (2007); “remed[ies],” Hinck v. U.S., 550 U.S. 501, 506 (2007); “redressability,” Massachusetts v. E.P.A., 549 U.S. 497, 545 (2007); “portions,” Ayotte v. Planned Parenthood of Northern England, 546 U.S. 320, 329 (2006); “answer[s],” Republic of Austria v. Altmann, 541 U.S. 677, 715 (2004); “donations,” McConnell v. Federal Election Com’n, 540 U.S. 93, 266 (2004); and, of course, “nude erotic dancing,” City of Erie v. Pap’s A.M., 529 U.S. 277, 295 (2000).

The highly revered federal judges of Nebraska have also been known to employ “problematic” in their opinions. Notably, in Carson P. ex rel Foreman v. Heineman, Judge Kopf adopted a 200-page Report and Recommendation—which, of course, means he adopted every-last word of that Report and Recommendation—that stated, “[s]tatus offenses are acts that are problematic for the juvenile and family, but not illegal if performed by an adult.” 240 F.R.D. 456, 471 (D. Neb. 2007).****

Two other examples of Judge Kopf’s personal fervor for “problematic” can be found in Ziola v. Central Neb. Rehabilitation Services, 2007 WL 3046350 at *1 (D. Neb. Oct. 17, 2007) and Riddle v. Wachovia Securities, LLC, 2006 WL 13101 at *2 (D. Neb. Jan. 12, 2006). Judges Bataillon, Smith Camp, Urbom, Strom, Thalken, and Gossett share Judge Kopf’s love of the word. See e.g., Petersen v. Astrue, 2009 WL 995570 at *3 (D. Neb. Apr. 14, 2009); U.S. v. Kofoed, 2009 WL 2781967 at *2 (D. Neb. Aug. 26, 2009); Rosen v. Astrue, 2008 WL 731605 at *5 (D. Neb. Mar. 17, 2008); Pennfield Oil Co. v. American Feed Industry Ins. Co. Risk Retention Group, Inc., 2007 WL 1290138 at *9 (D. Neb. Mar. 12, 2007); U.S. v. Sanders, 2007 WL 1490483 at *3 (D. Neb. May 21, 2007); and Kirkpatrick v. King, 2005 WL 2180097 at *8 (D. Neb. Sept. 7, 2005).

D. My Dreams

As you can see, “problematic” is a legitimate and useful word. Personally, I have a dream that one day people from every strata of economic life will be able to say “problematic” without shame; a dream that no teacher will ever say to her student “problematic is problematic, so use a different word,” a dream that no judge will ever say to his law clerk “let’s make it a rule that no one will use that word in this office.” Call me a helpless romantic, but I also dream that one day I will wake up next to the man I love, iron his clothes, prepare his breakfast, pack his lunch, and, as he walks out the door, say to him, “See you later, my love. I hope you have an un-problematic day.”

E. Hastily-Written Conclusion

So, let’s remember baby Jesus in his manger, the blessed saints, Vietnam veterans, and all martyrs who served humanity so that we could be free to convert nouns like “problem” into predicate adjectives like “problematic.” Finally, in matters of love, life, and court-opinion writing, Lyle Lovett said it best when he wrote, “It’s a lot easier to write about things that are problematic. Who wants to hear how happy you are?”


*Per foot.

**Do you know what happens when you type “problematical” into WordPerfect?  Absolutely nothing.  The smart people at Corel know that “problematical” is a word, and a good word at that! [RGK edit: Do you know what happens when you type “problematical” into Word? I don’t because only morons use Word which, of course, explains why the AO is pushing that piece of junk.]

***See Waddington v. Sarausad, 129 S.Ct. 823 (2009); Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Harbison v. Bell, 129 S.Ct. 1481 (2009); F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); and Virginia v. Harris, 130 S.Ct. 10 (2009).

****Fact: Marnie Jensen finds Judge Piester’s Report and Recommendation problematic.


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